Benevento v. Benevento, 2019 ONSC 7580
Court File No. D24480/14
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Brenna Lynne Benevento, Applicant
And Robert Benevento, Respondent
BEFORE: Justice D.L. Edwards
COUNSEL: Ms. Mahdi for Applicant
Mr. DeLisio for Respondent
Ms. Sadacharam for FRO
HEARD: October 31, 2019
E N D O R S E M E N T
Introduction
Mr. Benevento brings a Motion to Change and Motion regarding collection by FRO of arrears of support. Ms. Benevento brings two motions, one for contempt and one to strike pleadings.
All of the motions were contested.
Applicant’s Motions
With respect to the motion for contempt, counsel for the mother argues that the father is in contempt of Justice Sheard’s order of July 3, 2018 to provide certain disclosure.
Counsel for the father submits that the mother has not been specific as to what portion of the disclosure order has not been fulfilled.
Counsel for the mother asserts that Mr. Benevento’s failure to disclose is another of a series of failures to honour court orders by him.
The other court orders involve payment of money and cannot be the subject of a contempt motion. It follows that I cannot use those orders as evidence to conclude that he is in the habit of breaching court orders. I must look to the specific court order and determine whether Mr. Benevento is in contempt of it.
Mr. Benevento’s counsel submits that he has provided partial disclosure albeit after the time frame set out in Justice Sheard’s order, and that the mother has never particularized what remains outstanding.
The parties agree that the test for a contempt finding is set out in Ricafort v. Ricafort, 2006 ONCJ 520:
a. That there is a court order to be enforced;
b. That the terms of that order are clear and not open to a variety of interpretations;
c. That a party to that order has been put on proper notice of an application to find him or her in breach of that order, with particulars of the alleged breach clearly laid out so that the alleged contemnor is made aware of the case to which he or she must respond;
d. That there has been a disobedience to that court order; and
e. That party disobeying the order has done so in a deliberate and willful fashion.
Any doubt about any of those elements is to be exercised in favour of the person alleged to be in breach of the order.
I do not make light or reduce in anyway the importance of full disclosure in family law matters. It is fundamental to the proper functioning of the family law courts. Those who do not fully disclose suffer consequences including adverse inferences and a striking of pleadings.
However, a finding of contempt is a serious matter and one that must be established beyond a reasonable doubt.
I find that the mother has failed to provide particulars of the alleged breach, particularly in light of the partial disclosure made by Mr. Benevento and therefore I decline to find Mr. Benevento in contempt at this time.
It is important that the issue of disclosure be resolved.
I order that Ms. Benevento provide to Mr. Benevento within 14 days a list of outstanding disclosure under Justice Sheard’s Order. Mr. Benevento shall, within 30 days thereafter, provide the said disclosure, or provide an affidavit setting out his best efforts to obtain the same and why it could not be obtained. Should Mr. Benevento fail to do so, Ms. Benevento may return this contempt motion to the court.
Turning next to the motion to strike.
Under the motion to strike, Ms. Benevento seeks Mr. Benevento’s pleadings struck and a security for costs order in the amount of $50,000.
She asserts that Mr. Benevento has failed to pay a number of cost orders. I note that Justice Ramsay ordered costs of the trial in the amount of $45,000, $27,500 of which were to be collected through FRO, and the Court of Appeal made a cost order of $8,000, $6,000 of which was to be collected through FRO. Justice Sheard made a cost order, but she left the issue as to whom these costs are to be paid to the judge hearing the Motion to change.
Ms. Benevento asserts that Mr. Benevento’s pleading should be struck, and he should post $50,000 as security for costs.
Mr. Benevento submits that this type of order is a draconian one and should be ordered only as a last resort.
I am satisfied that in order for Mr. Benevento to proceed further, he must deal with these cost orders. Currently $33,500 of the cost orders are being collected through FRO. The fact that FRO is entitled to collect those amounts does not excuse Mr. Benevento from paying them. However, he is required to pay directly the sum of $29,500 of the cost orders, as FRO is not collecting those monies.
I order that, in the event that Mr. Benevento does not pay that portion of the costs that FRO is not collecting on the following basis:
a. $10,000 within 30 days
b. $10,000 within 60 days
c. $9,500 within 90 days
then Ms. Benevento may bring this motion back to court and Mr. Benevento’s pleadings shall be struck.
- In the circumstances I am not prepared to order security for costs.
Respondent’s Motions
Turning next to the respondent’s motion seeking interim without prejudice adjustment to child and spousal support as well as a stay of enforcement proceedings against FRO.
Regarding the child support issue, Ms. Benevento’s position is that Riley is finished high school, working full time and therefore not a child of the marriage.
This is not Mr. Benevento’s position. He submits that Riley has been living with him for some time and child support should be adjusted retroactively. That issue cannot be resolved until the trial of the Motion to Change.
However, based upon that admission by Ms. Benevento, it would not be appropriate that child support continue to be paid by Mr. Benevento. Therefore, effective November 1, 2019 on an interim without prejudice basis, no child support for Riley shall be payable by Mr. Benevento. The issue as to whether Riley moved residences to Mr. Benevento and if so, when and how that might impact upon child support remains a live issue.
Mr. Benevento also seeks an interim without prejudice order to reduce ongoing child and spousal support based upon his current income as reflected in his income tax returns and T4 slips.
Ms. Benevento argues that Mr. Benevento’s evidence cannot be relied upon and that he has income from other sources.
For the purposes of an interim order I am prepared to accept that Mr. Benevento is an employee of his former company. The circumstances surrounding his sale of that business to his brother can be left to another day.
Based upon his 2018 T4s and his income tax returns, his line 150 income was $58,038.
Ms. Benevento argues that he has other income not reflected in that return and points to the decision of Justice Ramsay and his comments regarding the credibility of Mr. Benevento.
I am satisfied that for the purpose of an interim without prejudice order I can rely upon Mr. Benevento’s T4 and tax information.
It is important that Mr. Benevento satisfy matters arising prior to the commencement of the Motion to Change, and in particular the outstanding cost orders which are not being collected through FRO, before being allowed to seek relief from this Court. He is asking for the indulgence of the Court, and in the absence of progress on this issue, he will not receive it.
I order, on a temporary without prejudice basis, that effective upon the first day of the month next following the payment of the first $10,000 of costs required above, and continuing only so long has Mr. Benevento pays the subsequent cost orders of $10,000 and $9,500 as set out above, then child support and spousal support shall be adjusted as follows:
a. Mr. Benevento’s income of $58,038 shall be used to calculate support
b. Child support for Madyson shall be the sum of $536 per month;
c. Spousal support shall be $300 per month.
This interim without prejudice order shall cease on April 17, 2020, which is the last day of the March Sittings unless extended by the judge hearing the Motion to Change during those Sittings, and the support order of Justice Ramsay of October 26, 2015 shall re-commence on that day, with the exception that child support shall not be payable for Riley. If the matter is not reached during the March Sittings through no fault of Mr. Benevento, then he may seek an extension of this temporary order to the last day of the June 2020 Sittings.
Counsel for FRO argued that I should not grant a stay of enforcement.
I am satisfied in all of the circumstances that a stay of enforcement paralleling the temporary interim order above regarding support should issue.
I issue an order of stay of enforcement by FRO of outstanding arrears which shall cease on the day that the temporary without prejudice support order in paragraph 33 ends, with the exception that in addition to ongoing child and spousal support he shall pay monthly the sum of $1,000 on account of arrears.
Mr. Benevento has been on balance the successful party on these motions. However, as he is seeking the indulgence of the court and has not paid outstanding cost awards, I make no order as to costs on these motions.